This blog takes an interest in issues associated with Freedom of Information (FOI) and privacy legislation in Australia. It also includes comment about open transparent and accountable government and related issues generally drawing on developments in Australia and overseas. Information contained on this site is general in nature and does not constitute legal
advice.
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Friday, October 29, 2010

Dr James Popple has been appointed Australia's first Freedom of Information Commissioner. He is, well until Monday, First Assistant Secretary of the Civil Law Division of the Commonwealth Attorney-General’s Department and an Adjunct Lecturer in the School of Computer Science at the Australian National University. “Dr Popple has a strong administrative law background and extensive experience providing legal and policy advice to government,” Minister for Privacy and Freedom of Information said. Dr Popple's CV, posted on the ANU website provides more details of an impressive list of appointments including a stint working on privacy in the late 1990s, an earlier period as an associate to High Court Justice Gaudron, publications including one on vexatious litigants that may come in handy, and expertise in a legal expert system with the name of "Shyster." Hope he keeps that sort of sense of humour!

Professor John McMillan, Information Commissioner, Timothy Pilgrim, Privacy Commissioner and Dr Popple are the top level team as the new regime kicks off on 1 November.

Earlier in the month Jenny Mead and Clare Smith (sorry about an earlier mix up with the names) were both appointed Queensland Right to Information Commissioner each on a part time basis.

In NSW applications were invited in last Saturday's Sydney Morning Herald (p28) for NSW Privacy Commissioner- a part time position. I haven't seen it online but if you are interested Laurie Glanfield Director General Department of Justice and Attorney General was listed as the contact 02 (612 if overseas) 8688 7313. Detailed CV and names of at least two referees to appointments@agd.nsw.gov.au by 8 November.

Thursday, October 28, 2010

Minister for Privacy and Freedom of Information Brendan O'Connor yesterday announced the Government's fees and charges for the reform regime to commence on 1 November, and covered similar ground and a bit more in this answer to a question in Parliament. The new element, beyond what was first announced in March last year, and the subject of a draft regulation in December, is that all applicants will be given up to five hours of decision making time on an application free of charge.The previous proposal was that journalists and non profit organisations would enjoy such a concession. In a submission in January I argued this discriminated against John and Mary Citizen seeking to access information consistently with the new object of the act to increase participation in government processes, or to scrutinise government actiivity, quite apart from issues associated with difficulties in defining a journalist in this day and age.

Combined with the abolition of application fees, removal of all charges for access to personal information, and no charges where an application is not dealt with in time, this will be a big step towards reducing the cost barrier that has stood in the way of more widespread use of the FOI act for the last 28 years. The changes are as follows:

Fee

Now

From November 1

Application

$30

No fee

Search and retrieval

$15 an hour

No change - $15 an hour

Decision making

$20 an hour

First five hours free, after that $20 an hour

When FOI request is not responded to within the statutory time limit

Normal fees apply

No fees

Internal review

$40

No fee

Tasmania still leads in this area having abolished all processing charges while retaining the application fee.

Defence, having released the document to two Freedom of Information applicants, has published its incoming government brief. The document, not surprisingly is more heavily redacted than the previously released Treasury and Finance briefs. The Department's Media Release states "Much of this information has previously been made public, including through Senate Estimates, and in preparatory material released for the Afghanistan debate in Parliament." Sean Parnell of The Australian was one of the applicants and has this piece in the paper today, with signs already the brief is contributing to public debate.

Wednesday, October 27, 2010

In its first decision concerning the Right to Information Act, the Queensland Civil and Administrative Tribunal found the Information Commissioner erred in law in deciding that City North Infrastructure Pty Ltd (CNI), a Special Purpose Vehicle established by the government to assist in the delivery of certain infrastructure projects including the Airport Link, was a public authority and subject to the RTI act. The decision means any such company established by the Queensland Government solely under the Corporations Act, a Commonwealth act, is not subject to the RTI act, and raises a policy question concerning the extent to which government bodies created in this way should be subject to different levels of accountability and transparency than others.

The decision does not concern the status of a Government Owned Corporation or a subsidiary of a government owned corporation, both specifically included in the definition of agency in s 14 of the act. Such bodies are within the ambit of the RTI act if established as a body corporate under an Act or the Corporations Act; and declared by regulation to be a GOC (Government Owned Corporations Act 1993 s5.)

Tuesday, October 26, 2010

Journalists who know a thing or two about Freedom of Information (correction they all do these days) feature in the finalists for this year's Walkley awards.

Linton Besser of the Sydney Morning Herald is a finalist in two categories: Investigative Journalism for “The wrong stuff” about Defence contracting, and Print News Report, with Sean Nicholls and Nick O'Malley, for “Freebies for Labor minister” about then NSW cabinet minister Ian Macdonald's failure to declare $30000 in airline upgrades. Interestingly both reports had their genesis in information available on the public record, although there was plenty of digging thereafter.

While not mentioned in the citation, Paul Toohey and Janet Fife-Yeomans, also finalists in this category for The Azaria files, obtained jury notes, documents, photos and transcripts of conversations with police in the Chamberlain trial 30 years ago through a freedom of information application.

Tim Lester, with Andrew Meares, is in the Broadcast and Online Interviewing category for online interviews on smh.com.au- “Bishop’s passports”, “Gillard Challenge” and “Hockey’s Costings.”

Update: And this from Anonymous:Dont' forget Nick McKenzie and Richard Baker for 'Dirty Money' (Four Corners, ABC TV and The Age, about the Reserve Bank and international bribery, commended for Investgative Journalism) - while they had an insider, they followed up for documentary evidence using FOI on several of the Cth agencies involved. Has FOI become such a tool that journalists (or more pointedly sub-editors) don't feel they need to mention.. that FOI was the method used to obtain documents?

I don't think I can say anything different than last time, when Afghanistan, not Iraq was in the frame:

"This is a whistleblow outside any legal framework, and raises the issue of criminal liability for whoever was involved....In the court of public opinion we will hear a lot about the public interest and the right to know generally the details of a war involving loss of life and billions of dollars, about what is happening on the ground... And specifically about civilian casualties not previously revealed, and any lies, deceptions and cover up that may have been involved.... On the other hand you can't run a war or any system where anyone can reveal whatever they like. The questions-ethical as much as legal, and never asked in the Kessing case-come down to whether disclosure causes real harm to an identifiable public interest such as the protection of national security that is not outweighed by the public interest (benefit to the community as a whole) in disclosure."

Andrew Wilkie has reservations as reported in the Sydney Morning Herald:

Photo Gary Schafer

"I have a high level of confidence that this is fair dinkum material," said Wilkie, a former army officer and intelligence analyst who resigned from his position at the Office of National Assessments (ONA) in 2003 over concerns that the Howard government invaded Iraq for political purposes. "I'm a whistleblower myself, I support whistleblowers, I support the role WikiLeaks has generally to publicise official misconduct, but if they have crossed the line and if they are genuinely putting people at risk then I think that's unacceptable." "I do have a certain restlessness here. I find it a bit hard to be confident that they have not put someone at risk or perhaps exposed some sort of operational procedures," he said, adding he could have walked out of the ONA in 2003 with "a brief case full of incriminating documents" but chose not to. "I think even if you're a whistleblower you do have an obligation not to be reckless, to not put lives at risk, to not disclose genuine secrets, to not disclose operational capabilities or technical capabilities."

Crossing the line and calling the shots on genuine secrets will never be for the fainthearted.

Wilkie told Tim Lester in the video interview on that link of his commitment to legislation to provide whistleblower protection but added:

"I don't encourage whistleblowers. But if you are absolutely sure you have seen official misconduct you have to follow your heart and accept the consequences."

At the request of Toby McIntosh I provided this summary of the 1 November changes to the Commonwealth Freedom of Information Act and related Australian developments for freedominfo.org, the global network of freedom of information advocates. The new page on the sidebar lists and links to Australia's information access lawsas they stand at present, something put together for the purpose of that article.

Monday, October 25, 2010

Not that I've been counting, but Blogger has, and tells me that we have just passed this milestone. A bit over 400 posts a year since we started on 3 February 2006. I was pushed in this direction at the time by Susan Timmins, and Nicolette Davey working here while undertaking journalism studies at UTS, who both suggested a blog to replace an occasional client newsletter that had been around for years beforehand. (Nicolette is doing good things now at Baw Baw Shire Council in Victoria, with this commendation recently for an innovative radio series on sustainability.)

David Fraser's Canadian Privacy Law blog was the first source of inspiration about what might be, although privacy as an issue has been a secondary interest, and such a broad topic that I readily admit failure to do it justice.

Content has changed somewhat over time shifting from an initial focus on NSW, although the local scene still looms larger than others.The publishing philosophy has been simple-essentially what interests me!

The FOI landscape has changed for the better since 2006, these days accompanied by welcome discussion and movement towards more open government generally.

I've eschewed the invitation to put ads on the blog, or to experiment with pay per view content, so not surprisingly report this is not the way to make money online.

As to psychic rewards, I've enjoyed it, and am pleased if the blog has had a little influence here and there. In the first couple of years it was heartening to have 50 or so readers a day. More latterly it's 200 + and at best around 400. Hardly in the big league but I take comfort from the fact it is a specialised field. Numbers each year have increased by 40% to 50%.

Most readers seem to be in and around the public sector, hence (in my view) the low number of comments and the high resort to Anonymous as the identity of choice. And the drop in readership outside business hours on weekdays.

About 80% of hits are from Australia, 8% from the US, with the UK, Canada, New Zealand, India, Japan, Ireland, Germany and Malaysia rounding out the top ten. Email contact from students seeking help with projects, often puzzled inquirers from outside Australia, and people on both sides of the FOI table here wrestling with issues and problems have all been welcome. Thanks to those who have had generous things to say in Testimonials posted on the sidebar.

Blogging is terribly addictive. I have no idea how long this will last.

The concerns of journalists about the potential effect of disclosure logs on their FOI exclusives from May next year were no doubt heightened, for those who made Freedom of Information applications including Sean Parnell at least, by the decisions by Treasury and Finance to publish on the internet their incoming government briefs. In the Senate estimates Finance and Public Administration hearing on the Department of Finance and Deregulation last week, where (some) questions seemed better informed by what was in the brief, questions were also asked about the decision to publish the red book.

David Tune

The Secretary David Tune said the Department had three Freedom of Information applications on hand at the time, the first received on the Monday after the election from Michael McKinnon at Channel 7, followed by requests by Parnell from The Australian and Shane Wright from the West Australian. The decision to publish a redacted version was taken by the Department alone, possibly while the government was in caretaker mode, and the Prime Minister's Department was informed, not consulted. There was no mention of the minister being involved. Tune said Finance had released a redacted version of the the brief after the 2007 election in response to a request from Laura Tingle of the Financial Review, something less publicised than the similar decision at the time by Treasury to release its brief to Michael McKinnon. That brief was then published on the 7 Network site.

More from Australian Information Commissioner Designate Professor John McMillan in this report today by Sean Parnell in The Australian- a surge of Freedom of Information access applications are expected when the Commonwealth reforms commence on 1 November ( abolition of the application fee will no doubt be a contributing factor for those that know about it, but still no sign of the regulation with details of the new charge regime); the level of preparedness among agencies is mixed, with the larger agencies in particular well prepared; and his office expects to be hit with numerous review applications from the middle of next month.

Parnell reports that journalists at the Commissioner's briefing took a special interest in the disclosure logs, part of broader publication requirements that will operate from 1 May, concerned that publication within 10 days of documents released under FOI would " devalue (individual journalists') ideas, efforts and financial investments in FOI."

While the 1 November issues no doubt preoccupy thinking at the moment, there are aspects of this publication requirement that remain to be clarified in the next six months. One, the new Section 8 states ((2)(g)) the obligation extends to documents to which an agency "routinely gives access in response to requests" subject to the exclusion of certain categories of information of a business or private nature and ((3)) information that the Information Commissioner determines "would be unreasonable to publish." No determination has been issued to date.( I won't go on about this but the Commissioner has no powers to require publication of anything that goes beyond what is stipulated in the act, and a raft of other things including contracts and grants- at least subject to parliamentary and administrative directions-could and should have been included.)

Two, the significance if any of differences in the wording of the two relevant sections of the act. Section 11C headed "Publication of information in accessed documents" doesn't refer, as section 8 does, to publication of information in documents "routinely given", but to information (presumably any) where an agency or Minister has given a person access in response to an access application. The former seems narrower than the latter, which goes beyond the similar schemes introduced and operating in the reform states. Those disclosure log requirements are limited to publication of information released that is or may be of interest to the community generally. They don't appear to have given rise to the problem raised in Parnell's article although it's early days for the NSW and Tasmanian schemes, and Hobart and Brisbane are one paper cities. Presumably a larger pool will be keen to pick up any morsels released to someone else when this becomes a requirement under Commonwealth law.

If it's any solace to Parnell and other journalists, publication will be required within 10 working days.

Saturday, October 23, 2010

Hard to tell if this is a welcome sign of new times or an example based on an unknown formula for selective exercise of a discretion to disclose an otherwise exempt document, but in any event the release by Treasury in response to a Freedom of Information application of legal advice from the Australian Government Solicitor is a rare event. Particularly as the advice was that the super profits tax could be found to be unconstitutional if just one State changed a royalty rate. The advice (Constitutional issues) along with other documents released in response to its application is on the West Australian's webpage. Opposition Senator Brandis caught AGS on the hop, apparently unaware of the disclosure, when he asked questions (taken on notice) at this Senate Estimates hearing last Monday, questions based on the reasonable premise that privilege had been waived by release.Legal and Constitutional Affairs (L&C 110)

Anonymous, without even trying to rub any local noses in claims about our open government practices, has brought to attention the New Zealand Government webpage containing the set of briefings for incoming ministers published in December 2008. There might be a difference in content-the briefing released publicly for the Prime Minister is straight down the line about the department with little about issues that need to be addressed, although the couple of others that I looked at contain more along these lines- but Anonymous has made the point without the slightest hint of the hype that sometimes crops up in making trans tasman comparisons. Anonymous could have but didn't also refer to the NZ practice of publishing (admittedly selectively) cabinet documents, for example this recent paper summarising climate change initiatives and proposals to reduce greenhouse gas emissions in the transport sector, or other papers identified in this google search. Thanks Anonymous-whatever side of the ditch you are on.

Friday, October 22, 2010

During Senate Estimates hearings on Monday (Finance and Public Administration), Opposition Senator Cormann asked officers from the Department of Prime Minister and Cabinet (F&PA 38) about Freedom of Information requests received for the incoming government brief. The issue was taken up later by Senator Abetz (F&PA 52).

Applications have been received from the Seven Network and the West Australian, the first two months ago, but no decision on release has been taken. Each applicant has been told the important news first, that access would cost them $3740.80, and no splitting the cost between them should they each proceed. No one appears to have raised with the PM the question of publication of parts of the brief in line with the Treasury and Finance precedents, or pointed out how this might usefully contribute to public debate on matters of public interest-even on the topic of open government. Officials and the minister at the table were strongly attached to the idea that precedents set by others mattered not a jot, and that a departmental officer independently would make a decision on the applications free from ministerial direction. Sounds good, except the questioners were right to point out that the Prime Minister could simply direct that parts of the brief be published thus providing access at no cost and presumably to anyone interested.

That would be in line with her stated commitment to a new style of openness in government. And send a message to help with that transformation from 1 November that Australian Information Commissioner Designate McMillan spoke about earlier in the week.

Some of you just love your FOI and the cut and thrust of Estimates as well. For you, extracts follow:

The NSW Auditor General report Electronic Information Security is focussed on the failure of the NSW Government to ensure agency compliance with the international Information Security Management System standard, despite directions/ exhortations to agencies to do so. It seems no one has the clout or standing to force compliance by agencies that haven't acted on this, and things have simply drifted for the last nine years. The media release highlights the dangers this poses to personal information:

"The Auditor-General, Peter Achterstraat, today called on the NSW Government to make sure its agencies properly safeguard people‟s sensitive private information. “The Government is not able to assure the people of NSW that all its agencies are properly safeguarding sensitive private information,” said Mr Achterstraat...Mr Achterstraat outlined three key solutions to improve information security across Government. The Government needs to: establish minimum standards; hold people accountable to meet these standards and report annually to Parliament on the state of information security, including breaches. In summing up Mr Achterstraat said: “The people of NSW have a fundamental right to expect their families‟ private details are secure, regardless of which agency holds them. The Government must demonstrate this. Currently, it can‟t.”

There is a paucity of information in the audit report about incidents of breach of security involving sensitive information that may have occurred, and the report makes no link between standards of electronic security in government agencies and compliance with and potential breaches of privacy law.

The Auditor General notes reports of significant breaches of security of personal information elsewhere in the world, but cites only two significant incidents involving possible loss of sensitive information in NSW: one involving the Jobs NSW website –the Government's major recruitment tool - when E-mail addresses of job applicants were stolen, and the applicants were subsequently spammed by the hackers, and the other when the RailCorp networks were infected by the Conficker virus making data held vulnerable to theft or modification by hackers. The report continues:

There could be more such incidents. Unless breaches are exposed in the media knowledge of them tends to remain limited. Identifying both poorly and strongly defended systems in any form of public forum is likely to make that system a target. Keeping quiet makes it harder for a victim to identify how a wrongdoer got hold of their private information, and to hold the organisation accountable for its lax security. And in some cases, an organisation may never know it has been compromised, particularly if it is not that good at IT security.

In summary the report outlines significant potential danger to sensitive information holdings but has little to say about the extent of incidents that may have occurred.

The report doesn't mention that a government agency that fails to properly protect personal information isn't just in breach of the IT standard: it is also in potential breach of NSW privacy law, in force since 2001, that requires (s 12) an authority to ensure personal and health information

"is protected, by taking such security safeguards as are reasonable in the circumstances, against ..unauthorised access.. or disclosure, and against all other misuse."

Thursday, October 21, 2010

With important Federal Freedom of Information Act reforms to commence on 1 November, Australian Information Commissioner Designate Professor John McMillan has been talking to the Sydney Morning Herald's Matthew Moore. Worth noting:

Professor McMillan predicted the changes would ''transform government'' as departments realised old rules were gone and there was a new emphasis on ''pro-disclosure.'' He had held meetings with heads of departments and staff to explain how to adapt to the laws by the time they come into force on November 1. ''I say to them, 'You will have to change the way you do business. The government expects cultural change. You have to move from information control to information sharing,''' Professor McMillan said.

In some agencies senior managers were resistant to the new laws and still had the mindset that ''we are creating documents to support the government or for internal purposes''. That idea was ''erroneous'', the professor said. The new laws state specifically that ''information held by government is to be managed for public purposes and is a national resource''...

There have been many criticisms of how the law has operated since it was passed by the Fraser government in 1982. The professor said it had led to a fundamental change in access to information and had become an ''informal part of the constitution''. He expected the amended law to deliver a similar level of change. He supports making compliance with the laws part of the employment contracts for departmental heads.

As information commissioner, he said he would act as a ''champion'' for those seeking access to information in the public interest. ''[The commissioner] is really an open government champion,'' he said. ''All you are advocating is better information management in agencies and a pro-disclosure culture.''

The 2009-2010 NSW Ombudsman Annual Report marks the end of an era as the Ombudsman's long standing role in dealing with freedom of information (FOI) complaints and reviews passed to the Information Commissioner from 1 July with establishment of that office and the commencement of the GIPA Act. The Ombudsman reports (FOI at p 104) continuation of a downward trend in complaints: 145 formal complaints about the handling of FOI applications by agencies and local councils compared to 186 last year and 225 the year before.

"As predicted last year, we think this trend can be attributed to greater openness by agencies following memoranda by the Premier encouraging proactive release of information by government agencies. Another reason is the consistent decrease in complaints about the NSW Police Force (NSWPF) due to it having substantially reduced its backlog in processing FOI applications."

Particular issues covered in the report include an indication that pay and performance information of senior university executives will be required to be included in annual reports; excessive agency caution in disclosing business information,; overuse of legal privilege; and special mention of several investigations concerning complaints against the NSW Police Force. Journalists appear to have been a significant source of complaints.

To repeat what I said a year ago, thanks to Bruce Barbour, his predecessors in the position and longtime FOI experts in the office particularly Deputy Ombudsman Chris Wheeler, and Wayne Kosh, for holding the open government banner high even through often very dark times when other government leaders were missing in action.

Wednesday, October 20, 2010

In introducing the Evidence Amendment (Journalists' Privilege) Bill, Andrew Wilkie recounted the experiences of some high profile whistleblowers and the journalists who publicised their concerns, and acknowledged that the logical counterpart to the bill will be whistleblower legislation, adding that he looked forward to "working with members in this place to progress such unprecedented federal legislation during the term of this parliament."

Whistleblower legislation has been unfinished business for many months (years). The Government announced earlier this year a response to the Dreyfus committee report that was welcomed at the time as close to world's best practice. Until Queensland went one better. Mr Wilkie clearly has further thoughts on the subject.

Wilkie didn't mention it in his speech, but the third leg in all this is the need to clean up Australia's secrecy laws, including the draconian s 70 of the Crimes Act that makes the disclosure of information without authorisation a crime subject to up to two years imprisonment, and for which there is no defence. The Government is yet to respond to the Australian Law Reform Commission's recommendations.

Wilkie acknowledged that the protection of the identity of a source must give way in some circumstances to other interests. The

" bill does recognise that there may be circumstances where the public interest in the disclosure of the identity of the source is so strong that it should be provided to the court. In such cases it will be up to those parties who want to force a journalist to reveal their source to prove that the public interest is best served in disclosing the source and that the public interest benefit of a disclosure genuinely outweighs the likely harm to the source.This bill will replace the existing provisions in division 1A of the Evidence Act. It will include a new provision that provides clear authority for the presumption that a journalist is not required to give evidence about the identity of the source of their information. This presumption can be rebutted in circumstances where the public interest outweighs any likely adverse effect for the person who provided the information to the journalist, as well as the public interest in the communication of information to the public by the media."

Independent Andrew Wilkie introduced in the House of Representatives on Monday his bill to shield journalists sources from disclosure, welcomed by Australia's Right to Know and presumably others in the media. Opposition Shadow Attorney General Senator Brandis had beaten him to the punch, to less apparent acclaim. Debate is yet to occur on either bill.

Both reflect key features of the privilege taken from the New Zealand Evidence Act including the definition of journalist and news medium. In essence

Journalist means a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium. News medium means a medium for the dissemination to the public or a section of the public of news and observations on news.

"a journalist should be operating in the course of their work: This means that the journalist should be employed as such for the privilege to operate, and private individuals who make postings on the internet or produce non-professional news publications, where this is not their job, will not be covered by section 126H."

The Brandis EM doesn't refer to the line of demarcation in the same way:

"The privilege applies to disclosures to someone who, in the normal course of that person’s work, collects information in the expectation that the information may be published in a news medium. It is not intended that a claim for privilege could be made in respect of disclosures to a non-journalist that might be opportunistically relayed to a news medium outside of the normal course of that person’s work."

I've pointed out to Wilkie's office that his EMsuggests a free lancer not currently employed doing something for later submission to publishers won’t be considered a journalist for privilege purposes because of the absence of an employee-employer relationship at the time the source provided the information. Surely if someone is acting as a journalist that should be sufficient, not whether a person can demonstrate employment at the time.

I agree any private individual who simply posts something on the internet shouldn't have a right to the privilege. However in my view, despite the EM, the definition seems wide enough as it should be, to cover a person not currently employed who publishes on the internet routinely in providing a news service, ie a person who has a legitimate claim to be a citizen journalist.

The Brandis EM refers to public interest considerations that could override privilege as "the primacy of the administration of justice and the need to protect national security." The Wilkie EM doesn't elaborate.

The bills legislate for the privilege to apply in all proceedings in any Australian court for an offence against a law of the Commonwealth. The states are another issue.

The Wilkie EM makes the point that the legislation does not provide a journalist with a right to refuse to provide information where the information would not lead to the disclosure of the identity of the source.

It also explains that the legislated privilege does not affect the power or authority of the Parliament or a parliamentary committee.

Tuesday, October 19, 2010

Next thing you know it's congratulations to Senator Kate Lundy who received the Politics Online International eDemocracy award for People Changing the World of Internet and Politics in Paris last week, honouring her Public Sphere consultation initiatives, and support and advocacy for Gov 2.0. Another Australian Craig Thomler made the top 10.

I think Australia is in many ways leading the world with our Gov 2.0 agenda and our commitment to Open Government, and I believe we will see more exciting and innovation projects in government in the coming years, especially around open data, citizen-centric services and participatory democracy.”

Lundy is Parliamentary Secretary to the Prime Minister (and Parliamentary Secretary for Immigration and Citizenship) in the Gillard Ministry.

Monday, October 18, 2010

Peter Rolfe and Simon Kearney in the Herald Sun estimate at least 3000 media advisers are employed by federal and state governments at a salary cost of $250 million, with the Victorian Government at the top of the bill, and around $50 million a year spent by federal departments. It's unfair to suggest that all public affairs activities equate with spin, or to try to make a point that this money is spent providing the public with information no one asked for. Or to make too much of the arguments put by Bob Burton that spin generally and the proliferation of invisible forces increasingly is shaping public debate in a way that is incompatible with a healthy democracy. Or of the views of Queensland Royal Commissioner Tony Fitzgerald 20 years ago that "there is no legitimate justification for taxpayers money to be spent on politically motivated propaganda"(quoted by Burton p187.)

But to put the cost thing in perspective, federal agencies in 2008-09 spent a total of $24.5 million in staff costs and $5.7 million in non-labour costs in managing the Freedom of Information function including processing 27,500 requests-for information members of the public specifically wanted. (Annual Report 2008-2009 Appendix L). National FOI costs to compare with the $250 million overall are not available because most states don't collect or publish this information.

So too, apparently around the same time, the report on Federal parliamentary entitlements. By then the Government will have had it for eight months.

Katharine Murphy writing in The Age gives Minister Gray's ministry for the public service and integrity the title "Ministry of mess", and that's without even mentioning half the things for which he is responsible.

Murphy's version of entries in the minister's diary include:

Rescue what was for five whole minutes a bipartisan ''sort-of'' commitment to impose more integrity in areas such as political donations and electoral funding. (Good luck.)
Recover from the intense backlash the government faced when it watered down policing of government advertising; replace a highly respected official who left quietly at the height of the maelstrom; cut $60 million out of the aforementioned advertising budget; release a report due now that will give a flavour of the advertising spend in the countdown to the election. (What a hoot.)
Release a review of parliamentary perks - such as ''study'' tours to the south of France and Gold Passes, stuff that the previous minister kept locked in a maximum security vault for six months. The material is perceived to be so red-hot that it is currently the subject of two freedom-of-information requests. (Can't wait for that one.)

Murphy continues:

In a conversation I had with Gray about the job, several things became clear. He is a pragmatist, disinclined to rate purity over progress, and he has a firm grip on the poisoned chalice. He's commendably optimistic. He thinks it is possible to emerge with reform in this rainbow Parliament. There are grounds, he believes, for a ''civilised conversation''. The smart money should be on electoral reform heading off to be considered by a multiparty committee. All the things on his to-do list will be dealt with in sequence, he suggests. The report on perks and the government's response is likely to be out before Christmas. ''As soon as practicable,'' he says.

Clearly not a subject on which the minister thinks public input on the report before a government response might be helpful. But just on the off chance, I repeat:

Let's hope out of this that simplification and transparency including something along the lines of a single site monthly online publication of details of all payments and expenditure are the hallmarks of reform. Putting it up and making it searchable by member along the lines of this Scottish Parliament system would be a step in the right direction.

In Government Information Quarterly 27 (2010) 352–359, available on a pay for view basis), Robert Hazell and Ben Worthy of the Constitution Unit University College London discuss performance measures for FOI regimes in reaching the conclusion the UK act has performed reasonably well in the first four years of operation. They examine statistics that reflect performance of FOI in the UK, Australia, New Zealand, Canada, and Ireland, and also undertake a broader assessment that takes into account the political environment.

The statistics used are dated (for ease of comparison with the UK, the first three years of the operation of each act), focus on national government only, don't reflect changes that may have occurred recently ( for example, Australia's use of executive veto-conclusive certificates-gets a special bad mark, but they were abolished last September), or issues emerging in the FOI/Gov 2.0 era. With all the caveats, acknowledged by the authors, Australia is in the middle of the field on the statistics, and in the broader assessment, shares third place with Ireland, behind New Zealand and the UK, and ahead of only Canada.

The statistical comparison looks at

"different proxy measures of good performance. A positive combination of .. factors, such as high levels of awareness and use, high rates of successful requests resulting in disclosure, and a strong appeals process potentially locks FOI into a positive cycle of use, learning, and improvement, in which the request process and appeal system improve and the exemptions are clarified through interpretation. Such a finding would be a sign of an Act performing well. Conversely, if FOI is not used or the appeal system is weak FOI may become locked into a negative cycle of disuse, neglect and stagnation"

But Hazell and Worthy note that numbers don't tell the full story:

"Governments seeking to improve their performance will not achieve that by focusing on the numbers alone. This is where the political context is so important. Above all, an effective FOI regime requires strong government commitment and political will. Officials cannot do it on their own. Given strong political support, it is much easier to put other supportive factors in place: a strong lead department, with authority across government; central support and training (often removed after the early years); an effective appeals mechanism and related clear case law; an effective fees regime, which helps to control demand and reduce administrative costs (though what constitutes a “balanced” regime is difficult to determine).

The New Zealand FOI regime probably fares best, given its progressive openness and high level of political and official support, sustained by a wider pluralistic political culture. The UK follows New Zealand, with reasonably high rates of disclosure, a strong Information Commissioner, single use of the veto, and some explicit political support. Third is Ireland and fourth Australia, both of which, despite high levels of use and disclosure, suffer from a high level of appeals, a lack of political support and consequent restrictive reform. Canada comes last as it has continually suffered from a combination of low use, low political support and a weak Information Commissioner since its inception."

The Australian law is about to be different (from 1 November) and all the right things are being said about the importance of more open government, so our standing might be on the move. Watch out Kiwis!

What is needed in all Australian reform jurisdictions are appropriate measures of progress towards long range and intermediate goals that include not just responding to requests, reducing delays, improving the quality of decisions, but changing cultures, increasing participation in government, pro-active publication etc.

Friday, October 15, 2010

Justice Emerton of the Supreme Court in Chief Commissioner of Police v McIntosh [2010] VSC 429 found the Victorian Civil and Administrative Tribunal erred in law in interpreting s 25A of the Freedom of Information Act, a provision that permits an agency to refuse access to documents if satisfied the work involved in processing a request "would substantially and unreasonably divert the resources of the agency from its other operations."

The application by Opposition front bencher Andrew McIntosh, sought access to staff rosters produced in each police station in Victoria for last pay period in July 2009. The Tribunal decision was that the time taken by the freedom of information section of the agency should not be calculated in deciding whether s 25A(1)(a) applies, because the section had no functions other than dealing with FOI applications.

"This is unlike where a police station has a request by a staff officer for documents. In that circumstance, clearly the officer would, if not searching for documents, be performing other functions. It is a diversion of those functions that the section is referring to. It cannot be that a person from the respondent’s FOI department when working on an FOI request is being diverted from other functions... To interpret the section otherwise would be to deny the word “other” plays any part in interpreting the section. That is, the word “other” would be given no meaning."

Justice Emerton said

23 In my view, the questions of law raised in this appeal can be resolved by reference to the words in s 25A(1) and (2) of the Act. The meaning of the words ’other operations’ in sub-s (1) is to be ascertained by reference to the words at the beginning of the sub-section, which concern ‘a request’, and permit the agency (or Minister) to refuse to grant access to documents in accordance with ’the request’ without having caused the processing of ’the request’ to have been undertaken, if the agency (or Minister) is satisfied of the matters that follow. Those words refer to a particular request. Dealing with or processing ’the request’ is one of the operations of the agency. Its ’other operations’ are all of the other things that it does, including dealing with and processing other FOI requests. Such a construction is supported by sub-s (2), which in my view makes plain that the performance of the relevant tasks by any of the resources of the agency, including by FOI officers or specialists, are to be taken into account.

24 The obligation to comply with the Act is an important obligation of an agency. If, by reason of the voluminous nature of a particular request, an agency’s ability to process other FOI requests is impaired, there is no reason why that should be ignored in applying s 25A(1).

25 Accordingly, the Tribunal ought to have taken into account the time that would have to be spent by the FOI unit to process the Request when deciding whether processing the Request would substantially and unreasonably divert the resources of Victoria Police from its other operations.

Thursday, October 14, 2010

In his role as Minister for Privacy and Freedom of Information, Brendan O'Connor spoke at the Australian Institute of Credit Management National Conference yesterday, primarily on issues of credit reporting reform. On privacy generally, he outlined a series of steps to bring draft legislation before a Senate Committee in parts, culminating in a draft Bill for Parliament in the second half of 2011, and for the laws to be passed sometime near the middle of 2012. The Australian Law Reform Commission took 28 months to complete the report, provided to the Government in May 2008. By the middle of 2012 it will have taken 48 months to complete legislative action - if that timetable holds.

The Minister said

The aim now, as we embark on the task of reforming and substantially re-writing the laws, is to ensure they strike the appropriate balance between the competing imperatives - that is, to acknowledge the primacy of the individuals’ right to privacy, but balancing it against the appropriate and lawful use and disclosure of the personal information that is collected.

Stage one, the new draft Australian Privacy Principles, is before a senate committee now and hearings are expected shortly; draft legislation for new credit reporting provisions can be expected by the end of 2010; then health services and research, with a committee report anticipated by the middle of 2011.

No specific mention in the timetable of when other Australian Law Reform recommendations will be considered, such as tightening up conditions for the media exemption, removing the exemptions currently enjoyed by some businesses and political parties, and enacting a statutory cause of action for an unwarranted serious breach of privacy. But on that score the Minister said:

I am aware that there is a significant amount of debate about whether there is a need for a statutory cause of action for privacy in this country, or, to put it another way, an enforceable “right to privacy”. But there is at the very least an expectation in the community that individual privacy is to be respected and that personal information is to be appropriately protected.

As pointed out previously, the Tasmanian Right to Know Act provisions concerning proactive publication of information don't take things very far, and the powers conferred on the Ombudsman to require more seem unclear. Apart from information required to be made publicly available by another act or regulation (a required disclosure) whatever else is published essentially seems to be up to each agency. Agency performance three months after commencement of the scheme hardly suggests the brave new world that Attorney General Giddings spoke of in April 2009

“The key proposal is a new approach to accessing information which encourages departments to ‘push’ information into the public arena rather than waiting for a request to ‘pull’ the information from the agency.

Tuesday, October 12, 2010

The Office of Australian Information Commissioner website is up and running today, with that office, including the integrated Office of the Privacy Commissioner, and the Freedom of Information legislative reforms (other than the publication scheme requirements) to commence from 1 November. This OAIC Fact Sheet summarises what’s changed in FOI.(An official launch of the Office will take place at Parliament House Canberra on 1 November.)

Yet to appear is the regulation containing changes to fees and charges. In March 2009 the Government announced proposed changes including abolition of all application fees; that no charges will apply to applicants seeking access to their own personal information; that for all other applications, the first hour of decision-making time will be free (except for journalists and not-for-profit community groups where the first five hours of decision making time will be free); and applications not decided within the statutory time frame will be processed free of charge.

A Draft Regulation was released in December 2009, but is no longer posted on the FOI Reform webpage.

In this submission I raised a number of issues including the dangerous idea that in order to encourage the stated objects of reform, charges rather than application fees should be abolished to address the problem of the high cost barrier to access. Not holding my breath on that one, but Tasmania managed it.

The submission perhaps more realistically raised points about the special charges concession of five hours proposed for a journalist, a term not defined in the draft, but left to each agency to apply where "reasonably satisfied" a person was a journalist applying for documents in connection with activities as a journalist. Issues such as why five hours, why not for John and Mary Citizen also seeking to hold government to account, who is a journalist, and would bloggers and citizen journalists be left to try to argue it out with every agency?

All will be revealed soon I imagine if the new regime is to take effect from 1 November.

Pleased to see in another context that the bill introduced by Opposition Shadow Attorney General Brandis on a shield law for journalists follows the NZ approach of defining journalist and news medium in a way that would seem wide enough to cover "new journalism":

Journalist means a person who in the normal course of that person’s work may be given information by an informant in the expectation that the information may be published in a news medium. News medium means a medium for the dissemination to the public or a section of the public of news and observations on news.

Monday, October 11, 2010

Melissa Fyfe in The Age provides a run down on transparency issues as Victoria moves into election mode, with Attorney General Hulls defending the record on executive privilege claims and blaming the Opposition for voting down Freedom of Information reforms in Parliament. Those proposed reforms contained some positives for example on charges but included extending the time limit to 75 days, so "reform" wasn't the word that came instantly to mind. After one go in February 2008, the Government retired hurt. One positive, the Government's recent commitment to Gov 2.0, well worth a tick according to some, doesn't rate a mention in the article.

On the general picture, I'm with Ken Coghill and Rick Snell:

Despite the government's claims to be transparent, governance experts describe Victoria's approach to information as being from the ''horse and buggy era'' and have called on the Premier to introduce right-to-information laws that put the onus on the government to ''push'' information out, rather than the public having to ''pull'' it from the government through freedom of information. Such laws have been adopted by Queensland, New South Wales and Tasmania, said former Labor speaker of the lower house, Ken Coghill, who now lectures in governance at Monash University. ''I know John Brumby has a belief in accountability,'' said Dr Coghill. ''This election is a great opportunity to announce further steps and introduce right-to-information legislation.''...

(FOI law based on pull rather than push is) all upside-down for Rick Snell, a freedom of information expert and senior lecturer in law at the University of Tasmania. Like Dr Coghill, he believes Victoria's approach is antiquated, that it must introduce the right-to-information laws other states have. ''Your version of FOI is the 19th century, horse-and-buggy approach where ordinary people have to pull information out of the government,'' he said. ''What we need to do is train public servants and politicians that secrecy is not the only game in town.''

On the other hand in his valedictory speech last week, long time Commonwealth public servant Ken Mathews expressed pride in the Australian model of public administration, suggesting Ozminster rather than Westminster as the more apt description, and in the Australian Public Service "as a great, continuing national institution."

Mathews canvassed four issues that deserve thought by ministers and public service leaders and raised a more fundamental question: whether the public service is becoming a “docile and unassertive service” that needs a better point of balance between accountability to ministers, and responsibility more broadly to speak truth to power in putting big picture national strategic views to ministers, by not throwing in the towel when advice once given is rejected, in dealings with Ministerial staffers, in showing a bit of spine under questioning in Senate Estimates hearings, in speaking up for the public service itself. And in participating in media and academic debate:

When we hear garbage or inaccuracies on current affairs radio over breakfast shouldn’t we be getting the facts out there? I also think we have a responsibility to be more active on the conference circuit, including alongside academics. Yes, we need to be mindful of the public profiles of our ministers, and yes we need to avoid partisan issues, but there is a lot our great APS institution can say that can be constructive and will advance the public debate. We do have a choice: we can sit back and complain about the standard of public policy debate or we can do something ourselves to improve it. To clarify what’s legitimate in public comment perhaps we need a ‘new deal’ with our ministerial executive, parliamentary committees and accountability bodies such as the ANAO... Our top executives have a special role in the public debate.

Spot on there, just like the important contribution made to public debate through release of Red Book and other pieces of policy analysis.

Oh and all public servants are welcome anytime to express a view about open government issues canvassed here. From memory I can't recall a comment from any prepared to provide a name, although I expect Anonymous, our No.1 contributor, has many incarnations, including more than a few as otherwise proud and confident public servants.

Gerry Gleeson, one time head of the Premier's Department, holder of many other high public and private sector offices, and still highly influential, gave the NSW Government and the state public service both barrels in his Spann Oration and in a follow on interview on ABC Stateline on Friday. Apart from expressing shock and dismay about ministerialstandards, Gleeson said

the NSW Public Service, once regarded as one of the leaders in Australia, has lost it coherence, its stability, its unity of purpose, and with tenure so tenuous has lost its capacity to be a genuine source of frank and fearless advice

He spoke about fear, greed and incompetence; nepotism, politicisation through favouritism and ministerial influence in selection processes; lack of capacity for strategic policy and review; failure to attend to professional development; no systematic service-wide approach to identifying and developing the highly talented; the Government and Opposition endeavouring to use ICAC, the Ombudsman and the Auditor General for their particular political agendas; the attitude within government that private sector practices are best, and that by definition outsourcing is more efficient than in-house delivery; few follow up reviews to report on whether projected efficiencies, economies and value for money have been achieved, particularly with private public partnerships; and finally the re-emergence of the Treasury at the top of the power and authority tree.

Sure doesn't sound anything like the world within which Premier Keneally operates. The Premier told Parliament recently that the state has"one of the most stable, integral and respected public sector workforces in the world."

Gleeson puts forward in the Spann Oration a list of changes for the system of government, ministers and the public service all of which warrant consideration.

Freedom of Information rated this mention:

The changes introduced by Greiner and Carr effected positive improvements within the public sector, such as the budget process and FOI, although the release of information has been strictly controlled by Ministers. Also ICAC is a body that is now an essential.

Gleeson wasn't always as well disposed towards FOI. A commitment to introduce FOI was part of the ALP platform before and during the 12 years of ALP Government commencing in 1976 when Gleeson served as head of the Premier's Department. The late Peter Wilenski in a review of public administration for Premier Wran described NSW at that time as the secret state.The story goes that every time Wran raised the subject of where this reform stood, the bottom drawer of Gleeson's filing cabinet creaked open for just a moment before slamming shut. Nothing happened until a new premier Greiner arrived in 1988 and Gleeson departed. Greiner also then introduced the ICAC because of the stench of corruption in and around the NSW government.

I can also recall Gleeson in the mid 1980's making a speech to the Institute of Public Administration claiming NSW led the country in accountability, decrying calls for among other things, more stringent inquiry into executive government activity by parliament through committees such as public accounts ( being pushed along at the time by the committee's then staff person, now Minister for Climate Change and Environment Frank Sartor) and resisting arguments for performance audit powers for the Auditor General. All the time with that "Introduction of FOI" file safely locked away in the bottom drawer.

I won't even try to summarise key points, although three procedural issues of interest are:

an applicant for review cannot withdraw or discontinue part of an application before the Tribunal and either proceeds with or discontinues the application[152];

a party joined must be joined without reservation, not simply to part of the proceedings [[170]; and

a party is not under any obligation to refrain from subsequently using material that has been given in evidence in an AAT hearing, or lodged in the Tribunal (whether or not it was admitted in evidence at the hearing) and received in the course of the hearing, unless confidentiality is protected by an order under s 35 of the AAT Act, or by a statutory provision applicable to it, or was produced by compulsion under a summons under s 40(1A) of the AAT Act, and has not been admitted in evidence [178].

While Mr Mathews had a win on some documents in dispute, he wasn't granted immediate access all these years later, as ASIC is still to attend to another question - how much by way of charges are to be paid first.

As is usual in her decisions, Deputy President Forgie has undertaken meticulous analysis of relevant exemption provisions, and the applicable case law, even extending to publication of a table of where to find the discussion. Enjoy, well, at least mark this down as a quick reference to the law as it stands.

Annexure

Section

Description

Discussion of law

Annexure I

[291]-[312]

36

Internal working documents

[12]-[55]

Annexure J

[313]-[320]

37(1)(b) and 37(2)(b)

Enforcement of the law

[56]-[68]

Annexure K

[321]-[325]

40

Substantial adverse effect on proper and efficient conduct of operations of agency

Friday, October 08, 2010

The Queensland Information Commissioner's 2009-2010 Annual Report covers the first year of the operation of the Right to Information and Information Privacy acts. The Office has set a high standard in reporting against its targets, and has a good story to tell.

Of particular interest are the steps being taken to establish data for the measurement of progress towards achievement of the objectives of the RTI scheme through opinion surveys of public service culture and community awareness and attitudes. In addition, 212 significantly large and independent agencies (of the 602 agencies subject to the legislation) are to be part of an electronic audit based on the Office's Self Assessment Tool, that reflects the legislative and best practice compliance obligations set out in the published Performance Standards and Measures. (One reservation about this is the Tool to be completed by each agency runs to 31 pages of questions. More comment about this in another post, hopefully soon.) The surveys and audit are to be repeated in future to assess changes over time.

Queensland with a year's start on other reform jurisdictions is setting the pace in this area. Given the relevance of these pioneering efforts to measurement of performance in other jurisdictions, let's hope we won't have to wait a year until the next annual report to hear more about the surveys, and the results.

As to other matters..

The Office received around 4000 inquiries from agencies and members of the public, and 439 applications for external review, a 60% increase over the average of the previous three FOI years. Health topped the respondents' bill with 78, Police 48, Communities 42, then a gap to Environment and Resource Management with 18, and a long tail of other agencies. In local government, Brisbane City Council was the respondent in 17 matters with Rockhampton next with eight.

The Office resolved 338 matters prior to a decision, including 267 settled informally. Applicants generally did well in matters that went to formal resolution: of the 35 decisions by the Commissioner, 8 affirmed the agency decision, 15 varied, and 12 set aside the decision.

The median number of calendar days for an external review to be finalised was 37 days. As at 30 June 2010, 4 reviews more than 12 months old were open.

Individual citizens made the bulk of review applications. Journalists were involved in 27, up from two the previous year and eight a couple of years ago. Prisoners initiated 41, companies 37, community and lobby groups eight and politicians five.

71% of applicants who responded to a survey were satisfied overall with the service provided by the Office in 2009–2010. And 98% of agencies agreed the information and assistance from the Office was of a high standard.

Not much review activity needed from the Office on Information Privacy matters: 13 privacy complaints were received during the year. In 11 cases the Commissioner had no jurisdiction.

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About Me

Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees
from the University of Sydney, and has been involved in the FOI field for 25 years.Peter is an experienced public speaker and commentator. See In the News and Testimonials, and Career Summary for more details on background and experience.